UNITED STATES COURT OF APPEALS
For the Fifth Circuit
BALLY'S LOUISIANA, INC., doing business
as Bally's Casino Lakeshore Resort, doing
Belle of Orleans, LLC
Appeal from United States District Court
for the Eastern District of Louisiana
March 26, 2001
Before JONES and DeMOSS, Circuit Judges, and
BARZILAY, District Judge:
This is an appeal from the granting of a Motion
for Summary Judgment to the employer on a claim of sexual harassment filed
under the Jones Act, 46 U.S.C. App. § 688 (1996). Plaintiff-Appellant
Toni Martinez ("Martinez") sued her employer, Defendant-Appellee Bally's
of Louisiana, Inc., ("Bally's"), claiming sexual harassment, vilification
and infliction of mental distress by her supervisor. The district court
granted Bally's Summary Judgment Motion, holding that Martinez failed to
sustain her burden of setting forth facts indicating that she was entitled
to relief under the Jones Act. We affirm.
This Court has jurisdiction pursuant to 28
U.S.C. § 1291 (1996) which provides for judicial review of an appeal
from a final decision of a district court.
Martinez began her employment with Bally's
in 1996, on the gambling ship Belle of Orleans. On March 16, 1998,
she filed suit under the Jones Act, claiming emotional injuries and asserting
damages for loss of wages and benefits, maintenance and cure, costs, interest,
expenses, and attorney's fees.(2) Martinez
claimed that her supervisor used foul language, called her names, and threw
keys, papers, pens and pencils at her, causing her worry and stress. Bally's
conducted an investigation into the matter and terminated the supervisor's
employment because of his actions. The fact that the supervisor did not
physically touch Martinez is not in dispute.
During Martinez' deposition, Bally's counsel
posed inquiries regarding her physical condition. Martinez' counsel twice
interrupted the questioning, stating that she was "not making any kind
of physical injury claims," and "we're waiving any physical injury claims."
of Toni Martinez, at 42-43. Bally's then filed a Motion for Summary
Judgment on the ground that Martinez had no available remedy under the
Jones Act because her claim stated purely emotional, non-physical injury
and that such claims, unaccompanied by claims for physical injury, are
not viable under the Jones Act. In response, Martinez submitted an affidavit
asserting that her claims were for physical manifestations of harm resulting
from sexual harassment, including sleeplessness, nervousness, inability
to focus and dependence on anti-depressant medication. The district court
determined that (1) Martinez could not defeat Bally's summary judgment
motion by submitting an affidavit which directly contradicted her previous
testimony, because Martinez' counsel's statements during her deposition
were intended to relieve Bally's from discovery of facts related to physical
injury, were not merely asserted for an independent purpose, and were therefore
considered judicial admissions and binding on Martinez; and that (2) Martinez'
claims did not assert physical contact, and that because the Jones Act
only permits claims for sexual harassment that amount to claims for battery,
Martinez did not sufficiently state a claim for relief. The district court
held that Bally's demonstrated a lack of evidence to support Martinez'
case, and that Martinez failed to sustain her burden of providing specific
facts to establish a genuine issue of material fact. Therefore, the court
granted Bally's Summary Judgment motion on January 11, 2000. This appeal
Standard of Review
The Court of Appeals reviews the granting
of a motion for summary judgment de novo, applying the same standard
of review as the district court. See Storebrand Ins. Co. U.K.,
Ltd. v. Employers Ins. of Wausau, 139 F. 3d 1052, 1055 (5th Cir. 1998)
(citations omitted). Summary judgment is appropriate when the record demonstrates
"that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
The party seeking summary judgment bears the burden of demonstrating an
absence of evidence to support the non-movant's case. See Celotex Corp.
v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d
265 (1986). Once the movant shows that no genuine issue of material fact
exists, the burden shifts to the nonmovant to set forth specific facts
to establish a genuine issue of material fact, without merely resting on
allegations and denials. See Id. at 2552-53. Factual controversies
are to be resolved in favor of the non-moving party. Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
Martinez first argues that the district court
erred in concluding that she did not state a claim for physical injury.
Martinez argues that she did not waive all claims of physical injury, because
she misunderstood the meaning of the phrase "physical injury." She and
her counsel interpreted the words "physical injury" to mean physical injury
as a result of physical contact, rather than physical injury resulting
from either physical contact or emotional distress. She declares that her
counsel's statement during her deposition that she was not making any kind
of physical injury claims referred only to physical injury resulting from
physical contact. Furthermore, she maintains that her affidavit provided
sufficient evidence to defeat Bally's Motion for Summary Judgment.
The district court did not err in holding
that Martinez failed to raise a material issue of physical injury and thus
could not recover for physical injury under the Jones Act.
Bally's responds that by announcing that she
was not making any claims of physical injury, Martinez indeed waived all
claims of physical injury. According to Bally's, the district court properly
held that Martinez' counsel's waiver of physical injury amounted to a judicial
admission, or stipulation foreclosing discovery into Martinez' physical
injuries. By withdrawing physical injuries resulting from either physical
or mental distress from contention, Martinez precluded Bally's counsel
from pursuing any further line of questioning regarding physical injury.
Because it was submitted after Martinez withdrew any claims of physical
injury and after Bally's filed its Motion for Summary Judgment, Martinez'
affidavit stating that she suffered from various physical ailments may
not be considered. Should the Court give credence to Martinez' "manufactured"
physical injuries, Bally's would be severely prejudiced.
A judicial admission is a formal concession
in the pleadings or stipulations by a party or counsel that is binding
on the party making them. Although a judicial admission is not itself evidence,
it has the effect of withdrawing a fact from contention. A statement made
by counsel during the course of trial may be considered a judicial admission
if it was made intentionally as a waiver, releasing the opponent from proof
of fact. McCullough v. Odeco., Inc., No. CIV.A. 90-3868, 1991 WL
99413, at *2 (E.D. La. May 30, 1991). By contrast, an ordinary evidentiary
admission is "merely a statement of assertion or concession made for some
independent purpose," and it may be controverted or explained by the party
who made it. McNamara v. Miller, 269 F.2d 511, 515 (D.C. Cir. 1959).
"A judicial admission is conclusive, unless the court allows it to be withdrawn;
ordinary evidentiary admissions, in contrast, may be controverted or explained
by the party." Keller v. United States, 58 F.3d 1194, 1199 n. 8
(7th Cir. 1995 ) (quoting John William Strong, McCormick
on Evidence, § 254 at 142 (1992)).
The district court correctly noted that counsel's
statements were intended to relieve Bally's from discovery of facts related
to physical injury and were not merely asserted for an independent purpose.
court properly determined that Martinez' counsel's statement waiving all
claims of physical injury was a judicial admission, which could not be
contradicted by affidavit or otherwise. Martinez' contention that the trial
court erred in concluding that her affidavit was not "a sufficient explanation
of the confusion concerning the words physical injury" does not address
the court's finding of a judicial admission, but assumes that the court
found counsel's statement to be an evidentiary admission.
states that the affidavit did sufficiently explain that she waived only
claims of physical injury resulting from physical contact, but that the
physical injuries resulting from the sexual harassment including nervousness,
sleeplessness, inability to focus and dependence on antidepressant medication
were not waived.
However, the Court agrees with the district
court that Martinez' counsel's statements, made as Bally's counsel was
questioning the plaintiff regarding physical injury, that she waived all
such claims, was an act of waiver relating to defendant's proof of fact.
In addition, there was no other evidence of "physical manifestations" of
emotional injury in the record before the district court. Bally's deposed
five of Martinez' medical providers, none of whom testified that she was
seen for physical injuries resulting from sexual harassment. Martinez may
not explain or controvert a judicial admission. Thus, her affidavit was
properly precluded from consideration as evidence of physical injury. Martinez
has not set forth specific facts to establish a genuine issue of material
fact. The district court therefore properly granted Bally's motion for
II. The district court did not err in holding
that Martinez cannot recover for emotional injuries.
Martinez argues that under the Jones Act she
is entitled to recover for emotional injuries she allegedly sustained due
to the sexual harassment by a Bally's employee.(3)
Bally's argues that the district court properly held that Martinez cannot
recover for emotional injuries under the Jones Act because she failed to
prove (1) physical injury and (2) tortious physical contact.(4)
The district court correctly held that Martinez
could not recover for emotional injury because she failed to prove she
suffered any physical manifestations of her alleged emotional injury. For
a sexual harassment claim to be compensable under the Jones Act, the plaintiff
must prove, inter alia physical injury. See Wilson v.
Zapata Off-Shore Co., 939 F.2d 260, 265-66 (5th Cir. 1991);
v. Tidewater Marine, Inc., 34 F. Supp. 2d 448, 450 (S.D. Tex. 1999).
If conduct actionable under the Jones Act leads to physical manifestations
of emotional injury the claim may be compensable. See Wilson, 939
F.2d at 265; Williams v. Treasure Chest Casino, Nos. CIV.A. 95-3968,
CIV.A. 97-0947, 1998 WL 42586, at *5 (E.D. La. February 3, 1998). In
this Court held only that where physical contact amounting to battery occurred
in the course of sexual harassment, an actionable injury under the Jones
Act had also occurred. Our Court has not ruled whether sexual harassment
unaccompanied by battery can be actionable under the Jones Act and we do
not reach that issue here. Martinez' only substantial
evidence to support
her alleged physical injury was her affidavit. The affidavit, which was
filed after her pleadings and discovery, stated that the harassment
she suffered caused her nervousness, sleeplessness, difficulty in focusing
and dependence on anti-depressants -- claims that did not appear in her
complaint or answers to interrogatories. However, as explained above, the
district court properly declined to consider the affidavit because Martinez'
counsel made a judicial admission waiving all claims of physical injury.
Without the affidavit, Martinez cannot prove
she suffered physical manifestations of emotional injury. Without proof
of such injury, she cannot recover for her claims of emotional harm. The
Court recognizes the potential harm that can be caused by sexual harassment
actionable under the Jones Act; however, it is the plaintiff's burden to
prove she was injured because of the harassment. In her Answer
to Bally's First Interrogatories, Martinez stated only that the acts
of her employer caused her great worry and stress. Answer to Bally's
First Interrogs., Interrog. No. 3. None of the five different medical
providers testified that Martinez presented any physical injuries or manifestations
from the alleged harassment. An excerpt from the Deposition of Dr. Melinda
Meyer ("Meyer Dep.") illustrates that Martinez did not display
any physical manifestations of her alleged emotional injury.
Did Mrs. Martinez appear to you to be experiencing
or in a state of any heightened stress or anxiety?
Meyer Dep., at 16.
Would you have noted that you had observed that?
Yeah. I wrote "No Apparent distress." That's
In evaluating the evidence, the district court
judge properly held that Martinez failed to claim any physical injury,
and no evidence on the record before the district court demonstrated such
injury. Martinez' affidavit was properly denied consideration as a contradiction
of her attorney's judicial admission. She provided no other evidence that
she suffered any physical injuries. Therefore, it was proper for the district
court to conclude that Martinez had failed to allege and adduce any evidence
on an essential element of her case under the Jones Act.
The district court did not err in holding
that (1) Martinez failed to raise a material issue of physical injury and
thus could not recover for physical injury under the Jones Act, and(2)
could not recover for her alleged emotional injuries in the absence of
physical manifestations. We therefore AFFIRM the judgment of the court
1. Judge, U.S. Court of
International Trade, sitting by designation.
2. The Jones Act, codified
at 46 U.S.C. App. § 688, states in pertinent part:
Any seaman who shall suffer personal injury
in the course of his employment may, at his election, maintain an action
for damages at law. . . .
3. Consolidated Rail
Corp. v Gottshall, 512 U.S. 532, 114 S. Ct. 2396, 129 L. Ed 2d 247
(1994) was brought under the Federal Employees Liability Act ("FELA"),
which the Jones Act incorporates. In that case, the Supreme Court held
that emotional injuries sustained through negligent infliction of emotional
distress could be compensable if the plaintiff were in the "zone of danger."
See Id. at 2410-11. However, Martinez did not plead negligent
infliction of emotional distress. Martinez claims she was sexually harassed
and suffered vilification and infliction of emotional distress, an intentional
tort. Gottshall distinguished the tort of intentional infliction
of emotional distress from its holding. See Id. at 2403 n. 2. In
addition, this Circuit has not had the opportunity post-Gottshall
to address the zone of danger rule and the facts of this case do not present
4. Martinez admits that
there was no physical contact.